The ‘Fair Elections Act’ is wrong, but not for the reasons you may think

Duff Conacher is the co-founder of Democracy Watch, a democratic reform organization established in 1993.

The federal Conservatives fully deserve the many criticisms of their so-called proposed "Fair Elections Act" (Bill C-23) not only because it makes many unfair changes but also because it fails to correct unfair flaws in the election system, and because they have tried to spin so many misleading statements about it.

Playing misleading games with democratic voting issues will hurt the Conservatives with their soft supporters, and with swing voters, and they will only recover by changing the really unfair measures in Bill C-23.

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One misplaced concern about Bill C-23 is that it will "muzzle" or "gag" the Chief Election Officer. While the bill does limit the CEO to providing the public only with information about how, when and where to become a candidate and to vote, that does not prevent Elections Canada from "providing" this information in imaginative ways and places – including vote-encouraging ads, high school mock-votes or other voter turnout education programs.

The changes in Bill C-23 also do not, as some have claimed, prohibit the CEO from doing public studies or from reporting on allegations of violations or investigations.

Another misplaced concern about Bill C-23 is that having the Director of Public Prosecutions choose the Commissioner of Canada Elections instead of the CEO will reduce the Commissioner's independence. The DPP is chosen by the Cabinet just like the CEO, and the Commissioner already submits investigation results to the DPP, with the DPP deciding whether to prosecute. Instead, they should all be nominated by the independent Public Appointments Commission the Conservatives promised to create in 2006, and appointed only with the approval of opposition party leaders.

No one would even be able to tell if the Commissioner's enforcement record worsened because the Commissioner refuses to disclose his rulings on more than 3,000 complaints since 1997. Bill C-23 makes this secrecy worse because it prohibits the Commissioner and the DPP from disclosing their rulings unless they penalize the violator. They must be required to disclose all their rulings to ensure proper enforcement.

As well, Bill C-23 not only eliminates the practice of allowing a voter to "vouch" for the identity of one other voter but also makes it illegal for Elections Canada to allow its voter registration card to be used as identification. As there is no evidence of vouching fraud there is no reason to prohibit it, and given that the registration card is a very accurate ID it should be added to the list of ID accepted at the ballot box.

A related unfair measure in Bill C-23 is that it extends the dangerously unethical power of the ruling party to force returning officers to appoint the election workers the party wants. Bill C-23 should be changed to give Elections Canada the power to appoint all election workers.

Some commentators have claimed another unfair problem with Bill C-23 is that it hikes the annual donation limit for individuals (which will make it easier for businesses and other organizations to funnel corrupting donations through their executives and employees, as happened in Quebec), and allows candidates to donate much more to their campaigns.

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However, the real problems are that the current donation limit is 10 times higher than an average voter can afford (it should be lowered to about $100-200 annually, as Quebec did recently), and that the Conservatives are eliminating the per-vote annual funding that parties receive (the most democratic part of the federal political finance system).

Bill C-23 also allows unlimited bank loans to candidates and parties. All loans should be limited to the same amount as donations, to prevent undue influence.

Bill C-23 also unfairly exempts the amount parties spend on "fundraising" from recent donors from their election expenses total. This is the first time since spending limits were first imposed 40 years ago that a spending or donation loophole has been added to the Elections Act (the trend has been to close loopholes) and like any loophole it will be abused to hide millions of dollars of secret and likely illegal spending.

And while Bill C-23 increases the amounts parties can spend on elections, it sneakily extends the advertising spending limit for interest groups and voters (so-called "third parties") to cover all ads that relate to an election. This change means the production costs of an ad run by a third party before and during an election period could be counted in the overall amount the third party is allowed to spend on election ads. In contrast, Bill C-23 doesn't limit pre-election spending by parties in any way.

Even if Bill C-23's unfair measures are changed, other measures will still be needed to correct the unfair and undemocratic flaws in the current federal elections system.

The current federal election voting system should be changed to ensure that the number of politicians each political party elects is based upon the voter support each party receives, to allow voters to vote "none of the above" and to actually fix election dates for every four years (unless a vote on non-confidence occurs earlier).

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Nomination races should be regulated to ensure party leaders can't appoint candidates or reject them (other than on grounds of "good character") and Elections Canada should be empowered to run these races democratically.

Elections Canada should also be empowered to run election debates, with the leader of every party with a seat in the House or substantial voter support allowed to participate.

Federal election watchdogs should have a right to any document they request to confirm compliance with the Elections Act, as watchdogs do in several provinces, and whistleblowers should be given a financial reward if they disclose evidence that leads to a conviction.

Clearly many changes are needed to make the proposed Fair Elections Act, and federal elections, actually fair. If the Conservatives don't make at least some key changes to the Act, it's fair to say that voters across Canada will be fairly concerned that the Conservatives aren't playing fair, and that it will be fair game for voters not to give the Conservatives a fair shake when they vote in the next election.

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